FIFTH DISTRICT GEORGE ZIMMERMAN, STATE OF FLORIDA ...

1 E-Copy Received Apr 24, 2013 3:33 PM. IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA . FIFTH DISTRICT . GEORGE zimmerman , Petitioner, v. CASE NO. 5D13-1233. STATE OF FLORIDA , Respondent. _____/. RESPONSE TO PETITION FOR WRIT OF CERTIORARI. COMES NOW, Respondent, STATE of FLORIDA , through the undersigned assistant attorney general, pursuant to FLORIDA Rule of Appellate Procedure (h) and this Court's April 8, 2013, order, and responds to Petitioner's Petition for Writ of Certiorari. Respondent requests this Court deny the petition. STANDARD OF REVIEW. Certiorari is an extraordinary remedy that is available only in limited circumstances. Certiorari is not a substitute for an appeal. See Cotton States Mut.

2 Ins. v. D'Alto, 879 So. 2d 67 (Fla. 1st DCA 2004). As the FLORIDA Supreme Court has explained, certiorari is an extraordinary remedy and [it] should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.' Belair v. Drew, 770. So. 2d 1164, 1166 (Fla. 2000)(quoting Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987)). In granting writs of common-law certiorari, the DISTRICT courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. STATE v. Steele, 921 So. 2d 538, 541 (Fla. 2005)(quoting from Combs v. STATE , 436 So. 2d 93, 95 (Fla. 1983)). Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the DISTRICT courts must be allowed a large degree of discretion so that they may judge each case individually.

3 Combs v. STATE , 436 So. 2d at 96. A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995). The latter requirement is jurisdictional. Montanez v. STATE , 24 So. 3d 799, 801 (Fla. 2d DCA 2010). It is well established that, orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm. Boyd v. Pheo, Inc., 664 So. 2d 294, 295 (Fla. 1st DCA 1995). Unlike situations where a trial court erroneously compels the exchange of information (the proverbial cat out of the bag orders), the harm done by the failure to provide information can be corrected on appeal in most cases.

4 Jennings v. Elections Canvassing Comm'n of STATE of Fla., 958 So. 2d 1083, 1084 (Fla. 1st DCA 2007); see also Bill Kasper Const. Co., Inc. v. Morrison, 93 So. 3d 1061, 1063 (Fla. 5th DCA. 2012)(en banc)(Torpy, J., concurring)( In the vast majority of 2. cases, a successful appeal and new trial provide a cure for the error. Were this not the rule, certiorari review of pretrial and trial rulings would be unlimited. ). It is also clear that an erroneous discovery order will not typically create certiorari jurisdiction unless it causes irreparable harm and is the type of order that could provide an opponent with material that could be used by an unscrupulous litigant to injure another person.' Banco Latino ( ) v.

5 Kimberly, 979 So. 2d 1169, 1171 (Fla. 3d DCA. 2008)(quoting from Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 999 (Fla. 1999)). When considering whether a particular type of harm may be remedied by appeal, an appellate court must bear in mind that, ordinarily, the time, trouble, and expense of an unnecessary trial are not considered irreparable injury for these purposes. Cont'l Equities, Inc. v. Jacksonville Transp. Auth., 558 So. 2d 154, 155. (Fla. 1st DCA 1990); see also Morrison, 93 So. 3d at 1063 (Torpy, J., concurring)( Here, even assuming that the excluded testimony is critical to the Petitioner's defense, the availability of a direct appeal is not legally impeded. Assuming error, a new trial provides a complete cure.)

6 The irreparable injury test must be satisfied in a certiorari proceeding that arises from a criminal case, as well. See, , Mingle v. STATE , 429 So. 2d 850 (Fla. 4th DCA. 1983)(denying a petition for writ of certiorari challenging the denial of a motion to compel disclosure of the name of a confidential informant due to the defendant's full, adequate and complete remedy on plenary appeal ). 3. Finally, given the narrow scope of certiorari review, this Court may not reach a different result simply because it is dissatisfied with the result reached by the circuit court. See Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000); Dep't. of Highway Safety & Motor Vehicles v. Roberts, 938 So. 2d 513 (Fla.)

7 5th DCA. 2006); Sylvis v. STATE , 916 So. 2d 915 (Fla. 5th DCA 2005). See also Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 526 n. 4, 530. (Fla. 1995)( There are societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple As a case travels up the judicial ladder, review should consistently become narrower, not broader. ). PROCEDURAL AND FACTUAL STATEMENT. BACKGROUND INFORMATION: Petitioner is charged by information with one count of second degree murder for the shooting death of Trayvon Martin on February 26, 2012. (Pet. Appx. Page 1). In the April 11, 2012, probable cause affidavit for an arrest warrant, some of the pertinent facts were set out as follows: On Sunday 2/26/12, Trayvon Martin was temporarily living at the Retreat at Twin Lakes, a gated community in Sanford, Seminole County, FLORIDA .

8 That evening Martin walked to a nearby 7-[Eleven] store where he purchased a can of iced tea and a bag of skittles. Martin then walked back to and entered the gated community and was on his way back to the townhouse where he was living when he was profiled by GEORGE zimmerman . Martin was unarmed and was not committing a crime. zimmerman , who also lived in the gated community, and was driving his vehicle observed Martin and assumed Martin was a criminal. zimmerman felt Martin did not belong 4. in the gated community and called the police. zimmerman spoke to the dispatcher and asked for an officer to respond because zimmerman perceived that Martin was acting suspicious. The police dispatcher informed zimmerman that an officer was on the way and to wait for the officer.

9 During the recorded call zimmerman made reference to people he felt had committed and gotten away with break-ins in his neighborhood. Later, while talking about Martin, zimmerman stated these a[**]holes, they always get away and also said these f[**]ing punks.. During this time, Martin was on the phone with a friend and described to her what was happening. The witness advised that Martin was scared because he was being followed through the complex by an unknown male and didn't know why. Martin attempted to run home but was followed by zimmerman who didn't want the person he falsely assumed was going to commit a crime to get away before the police arrived. zimmerman got out of his vehicle and followed Martin.

10 When the police dispatcher realized zimmerman was pursuing Martin, he instructed zimmerman not to do that and that the responding officer would meet him. zimmerman disregarded the police dispatcher and continued to follow Martin who was trying to return to his home. zimmerman confronted Martin and a struggle ensured. Witnesses heard people arguing and what sounded like a struggle. During this time period witnesses heard numerous calls for help and some of these were recorded in 911 calls to police. Trayvon Martin's mother has reviewed the 911 calls and identified the voice crying for help as Trayvon Martin's voice. zimmerman shot Martin in the chest. When police arrived zimmerman admitted shooting Martin.